Citation Nr: 1337723	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  10-28 050	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for chronic dermatitis of the abdomen, to include consideration as a Gulf War illness under the provisions of 38 C.F.R. § 3.317.

2.  Entitlement to service connection for acne vulgaris of the face, to include consideration as a Gulf War illness under the provisions of 38 C.F.R. § 3.317.

3.  Entitlement to service connection for chronic pharyngitis, to include consideration as a Gulf War illness under the provisions of 38 C.F.R. § 3.317.

4.  Entitlement to service connection for sinus arrhythmia, to include consideration as a Gulf War illness under the provisions of 38 C.F.R. § 3.317.


REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Hudson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1997 to January 2009.

This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2009 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  

In April 2013, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing.

A review of the Virtual VA paperless claims processing system reveals the transcript from the Veteran's April 2013 Board hearing and Biloxi VA Medical Center (VAMC) records from November 2010 to December 2011.  The VBMS paperless claims system does not contain any additional documents pertinent to the present appeal.

The issues of entitlement to service connection for chronic dermatitis of the abdomen and entitlement to service connection for acne vulgaris of the face are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  The evidence is in relative equipoise as to whether the Veteran's currently diagnosed pharyngitis is related to his military service.

2.  On April 22, 2013, prior to the promulgation of a decision in this appeal, the Board received notification from the Veteran that a withdrawal of his claim for entitlement to service connection for sinus arrhythmia was requested.


CONCLUSIONS OF LAW

1.  The criteria for service connection for chronic pharyngitis have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2.  The criteria for withdrawal of a substantive appeal by the Veteran, concerning the issue of entitlement to service connection for sinus arrhythmia, have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I. VA's Duties to Notify and Assist

VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial.




II.  Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  

A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he experiences sore throats.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding a veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).

A veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  When the evidence "is in relative equipoise," the law dictates that the veteran prevails.  Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  

The Veteran claims his pharyngitis began in-service and has continued to the present time.  See Veteran's Application for Compensation and/or Pension, December 2008.  A November 1996 Report of Medical History documents the Veteran had no history of ear, nose or throat trouble and the Veteran's November 1996 Report of Medical Examination noted that his mouth and throat were normal.  The Veteran's service treatment records (STRs) show that in March 2001, he was diagnosed with exudative pharyngitis.  In May 2001, the Veteran was again diagnosed with pharyngitis and in June 2001, the Veteran was diagnosed with streptococcal pharyngitis and treated with penicillin.  On the Veteran's August 2001 Health History form, he noted that since his last medical examination in March 2000, he had been treated for a sore throat.  The Veteran continued to be diagnosed with pharyngitis throughout service.  See Veteran's STRs, February 2002, October 2006 and May 2008.  Additionally, immediately upon separation from active duty, the Veteran filed a claim for service connection for chronic pharyngitis.  

Records from the Biloxi VAMC show the Veteran was diagnosed with pharyngitis in September 2010.  See Biloxi VAMC, Primary Care Note, September 2010.  Thus, the Veteran has a current diagnosis of pharyngitis.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal).

The Veteran's statements concerning his pharyngitis beginning in-service and continuing to the present are credible, as they are consistent with the medical record.  Thus, the Veteran's lay statements of experiencing pharyngitis since service must be accorded some weight, as they are competent, credible, and therefore persuasive regarding the onset and continuing symptomatology of his chronic pharyngitis.  See Jandreau, 492 F.3d at 1377; see also Charles, 16 Vet. App. at 374.  

The Board finds the evidence is in relative equipoise as to whether the Veteran's pharyngitis is related to service.  The evidence of record demonstrates that the Veteran currently has pharyngitis; that he had no history of pharyngitis prior to service; that he first experienced pharyngitis in-service; that he was diagnosed with pharyngitis multiple times throughout his period of service; that he filed for service connection for pharyngitis immediately upon separation from service; and that, he has experienced pharyngitis since service.  In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection for chronic pharyngitis is granted.  See 38 U.S.C.A. § 5107(b); see also Gilbert, 1 Vet. App. at 55-56. 

III.   Withdrawal of a Claim

An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the Veteran or by his authorized representative.  Id.  In an April 2013 written statement, the Veteran indicated that he wished to withdraw his appeal as it relates to entitlement to service connection for sinus arrhythmia.  Thus, the Board finds the Veteran withdrew his appeal as to the issue of entitlement to service connection for sinus arrhythmia.  There remains no allegation of errors of fact or law for appellate consideration; accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. 


ORDER

Entitlement to service connection for chronic pharyngitis is granted.

The appeal as to the issue of entitlement to service connection for sinus arrhythmia is dismissed.


REMAND

A remand is necessary for additional evidentiary development.  

The Veteran contends he has chronic dermatitis of the abdomen and acne vulgaris of the face that was caused by his active military service, specifically the extreme heat, sweating, friction, physical trauma and stress he was exposed to during his deployments to the Gulf.  See, e.g., Veteran's Letter, January 2013.

The Veteran was provided a VA skin examination in December 2012.  The VA examiner found the Veteran's chronic dermatitis of the abdomen was actually diagnosed as a genetic disease, Hailey-Hailey or benign familial pemphigus, during a 2011 skin biopsy.  See VA Examination, p. 66, December 2012; see also Biloxi VAMC, Dermatology Physician Note, March 2011.  Additionally, the VA examiner found that the Veteran's current acne vulgaris of the face existed prior to service, based on complaints in the Veteran's STRs that he had acne since the age of 14 years old.  See VA Examination, p. 67, December 2012.  The examiner opined that the Veteran's claimed skin conditions were less likely than not incurred in or caused by service as the record showed the Veteran's abdominal skin condition is a genetic disorder and the Veteran's acne pre-existed service.  Id. at 117.  The VA examiner found that the Veteran's Hailey-Hailey or benign familiar pemphigus was not worsened beyond its natural progression by military service; however, no rationale was provided for this opinion.  Id. at 3.  Additionally, the VA examiner opined that both the Veteran's acne and benign familial pemphigus are diseases with clear and specific etiology and diagnosis.  Id. at 119.  As both specific skin diseases existed prior to the Veteran's Gulf deployment, the VA examiner found they were less likely as not caused by the Veteran's exposure to Gulf War environmental hazards.  Id.

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled in service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111.  To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See VAOPGCPREC 3-2003. 

The Veteran's facial acne vulgaris was not noted upon entrance into service.  See Report of Medical Examination, November 1996; see also Report of Medical History, November 1996.  However, the Veteran's abdominal skin condition was noted upon entrance as a "periumbilical rash due to a chemical spilled on his clothes, in that area - (mild dermatitis)."  Id.  A January 1997 notation on the Veteran's Report of Medical Examination states "umbilical lesion of skin due to spillage of chemicals . . . [t]oday much better."  Id.  

An addendum to the December 2012 VA skin examination is necessary in order to obtain medical opinions regarding whether or not the evidence of record clearly and unmistakable shows that the Veteran suffered from acne vulgaris and benign familial pemphigus prior to service and if so, whether such conditions were not permanently aggravated by service.  Additionally, it is necessary for the VA examiner to provide detailed rationales for all opinions.  These rationales must specifically address the Veteran's contentions that his skin conditions were aggravated by the extreme heat, sweating, friction, physical trauma and stress he endured during his Gulf deployments.  See Veteran's Letter, January 2013; see also Veteran's Hearing Transcript, pgs. 13-14, April 2013.

The most recent treatment records from the Biloxi VAMC are dated from March 2012.  Accordingly, on remand, records of any ongoing VA treatment for the Veteran's skin conditions should be obtained.  See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent).

Accordingly, the case is REMANDED for the following action:

1. Obtain all updated pertinent medical treatment records 
from the Biloxi VAMC from March 2012 to the present.

2. Obtain the names and addresses of all medical care 
providers, not previously identified, who have treated the Veteran for any skin issues since service.  After securing the necessary release(s), obtain these records.

3. After completion of the foregoing, the RO should 
arrange for an addendum VA opinion from the same VA examiner who conducted the Veteran's December 2012 VA skin examination.  If this VA examiner is not available, the RO should arrange for an addendum VA opinion from an examiner with appropriate expertise.  The claims file (i.e. both the paper claims file and all medical records contained in Virtual VA) and a copy of this remand should be made available to the examiner for their review.

Based on the December 2012 examination and current review of the record, the examiner should answer the following questions:

(a) Does the evidence of record clearly and unmistakably 
show the Veteran had a congenital abdominal skin disease (Hailey-Hailey or benign familial pemphigus) prior to his entry into active duty in April 1997?

(b) If the answer to (a) is yes, does the evidence of record 
clearly and unmistakably show that the Veteran's preexisting genetic skin disease of his abdomen (Hailey-Hailey or benign familial pemphigus) was not aggravated by service or that any increase in disability was due to the natural progression of the disease? 

(c) If the answer to either (a) or (b) is no, is it at least as
likely as not (i.e., probability of 50 percent or greater), that the Veteran's currently diagnosed genetic skin disease of his abdomen (Hailey-Hailey or benign familial pemphigus) had its clinical onset in service or is otherwise related to service?

(d)  Does the evidence of record clearly and unmistakably 
show the Veteran had acne vulgaris of his face prior to his entry into active duty in April 1997?
(e) If the answer to (d) is yes, does the evidence of record 
clearly and unmistakably show that the Veteran's preexisting acne condition was not aggravated by service or that any increase in disability was due to the natural progression of the disease?

(f) If the answer to either (d) or (e) is no, is it at least as
likely as not (i.e., probability of 50 percent or greater), that the Veteran's currently diagnosed acne vulgaris of his face had its clinical onset in service or is otherwise related to service?

A full rationale must be provided for all stated medical opinions that reflect consideration of both lay and medical evidence.  In providing the opinion, the examiner should address the significance of the November 1996 Report of Medical Examination finding of a "periumbilical rash due to a chemical spilled on his clothes, in that area - (mild dermatitis)"; January 1997 treatment of the Veteran's umbilical skin condition; October 1997 notation of acne since age 14 that is cystic with hyperpigmentation that appears on the jaw line with worse bumps now and a diagnosis of acne vulgaris; November 1999 assessment of mild acne vulgaris; July 2000 treatment of the Veteran's umbilical skin condition, noting discharge and foul odor that has happened before and resolved spontaneously; the Veteran's deployment to the Saudi Arabia in 1999 and Kuwait/Oman/Qatar in 2002; the Veteran's March 2011 skin biopsy, showing that his abdominal skin condition is Hailey-Hailey or benign familial pemphigus; and, the Veteran's contentions that his skin conditions were aggravated by the extreme heat, sweating, friction, physical trauma and stress he was exposed to during his Gulf deployments.
Note: if the examiner concludes that any of the requested opinions cannot be provided without resort to speculation, the examiner should so state and explain why these opinions would be speculative and what, if any, additional evidence would permit such opinions to be made.

4.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs